Jewish World Review April 25, 2006 / 27 Nissan, 5766

Thomas Sowell

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Law or lynch law?

http://www.NewsAndOpinion.com | People who were not within 1,000 miles of Duke University have already taken sides in the case of a stripper who has accused Duke lacrosse players of rape. One TV talk show hostess went ballistic when a guest on her program raised questions about the stripper's version of what happened.


Apparently we dare not question accusations of rape when it involves the new sacred trinity of race, class, and gender.


Media irresponsibility is one thing. Irresponsibility by an agent of the law is something else — and much more dangerous. Prosecutors are not just supposed to prosecute. They are supposed to prosecute the right people in the right way. In this case, prosecutor Michael Nifong has proceeded in the wrong way.


Having an accuser or a witness pick out the accused from a lineup is standard procedure. That procedure not only serves to identify someone to be charged with a crime, it also tests the credibility of the accuser or witness — or it should, if the lineup is not stacked.


A lineup should include not only people suspected of a crime but also other people, so that it tests whether the accuser or witness can tell the difference, and is therefore credible. But the stripper who claimed to have been raped by members of the Duke lacrosse team was presented with a lineup consisting exclusively of photographs of members of the lacrosse team. In other words, whoever she picked out had to be a lacrosse player and would be targeted, with no test whatever of her credibility, because there was no chance for her to pick out somebody who had no connection with the team or the university. Apparently District Attorney Nifong was no more wiling to test the accuser's credibility than was the TV talk show hostess who went ballistic, though credibility is often crucial in rape cases.


Mr. Nifong went public with his having DNA evidence collected. Then, after the DNA failed to match that of the accused, the students were arrested anyway and their bail was set at $400,000 — in a community where a youth accused of murder had bail set at $50,000.


When a prosecutor acts like he has made up his mind and doesn't want to be confused by the facts, that is when the spirit of the lynch mob has entered the legal system. When this happens on the eve of an election for the prosecutor, it looks even uglier.


If the young men accused of rape are in fact guilty, they need to be proved guilty because they are guilty, not because an election is coming up or there is racial hype in the media or a legally stacked deck. More important, we need to know that the rule of law is there for all of us, regardless of who we are or who our accuser might be.


Even beyond this case, we are increasingly becoming a society in which some people are allowed to impose high costs on other people at little or no cost to themselves. This sets the stage for extortion, not only of money but also of legal plea-bargains extorted by ambitious prosecutors.


The stripper, for example, does not even pay the price of having her name known, while the names and pictures of the accused young men are all over the media. Even if they are acquitted, or the charges thrown out of court, this case will follow them and they will be under a cloud for the rest of their lives.


Mr. Nifong has said that he has a third person whom he may indict. If so, he has already demonstrated to that third person what he can do by disgracing the other two and putting a heavy financial burden on their families for bail and lawyers. If that third person cannot stand the disgrace or his family cannot afford the expense, that is leverage for getting him to say whatever the prosecutor wants him to say.


This case presents opportunities as well as pressures. Race hustlers are having a field day, including the inevitable Jesse Jackson.


A fellow stripper who was at the same party sees in this an opportunity — in her own words — to "spin this to my advantage."


The biggest opportunity that this case presents is for District Attorney Michael Nifong to win his election, even if the case falls apart later and the law is cheapened by all this.

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